Carvalho v. Colvin
ORDER AFFIRMING DECISION OF SOCIAL SECURITY COMMISSIONER re 27 - Signed by MAGISTRATE JUDGE KENNETH J. MANSFIELD on 6/30/2017. "For the reasons set forth above, the Court concludes that there is substantial evidence in the record to support the ALJ's finding that Plaintiff did not have a disability on or before June 30, 2013, her date of last insured. Given the standard under which this Court must review the ALJ's findings, the Court AFFIRMS the Commissioner 9;s decision." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CARLA JEAN CARVALHO,
NANCY A. BERRYHILL, Acting
Social Security Commissioner,
Civil No. 16-00363 KJM
ORDER AFFIRMING DECISION OF
SOCIAL SECURITY COMMISIONER
ORDER AFFIRMING DECISION OF SOCIAL SECURITY COMMISIONER
This case involves Plaintiff Carla Jean Caravalho’s1 (“Plaintiff”)
appeal of the Social Security Administration Commissioner’s denial of Social
Security disability insurance benefits to Plaintiff. Plaintiff filed her Opening Brief
on December 15, 2016. ECF No. 21. Defendant Nancy A. Berryhill, Acting
Social Security Commissioner (“Defendant”), filed her Answering Brief on
February 27, 2017. ECF No. 25. Plaintiff filed her Reply Brief on March 15,
2017. ECF No. 26.
The Court notes that the Complaint in this matter indicates that Plaintiff’s name
is “Carla Jean Carvalho.” See ECF No. 1 at 1. The parties’ subsequent filings,
however, refer to Plaintiff as “Carla Jean Caravalho.” See, e.g., ECF No. 16. To
avoid confusion, the Court will refer to Ms. Caravalho as “Plaintiff.”
The Court held a hearing on this matter on May 24, 2017. Danielle
R. Beaver, Esq. appeared on behalf of Plaintiff. Asim H. Modi, Esq. and Edric
M. Ching, Esq. appeared on behalf of Defendant. After carefully considering the
memoranda, arguments, and the record in this case, the Court AFFIRMS the
decision of the Commissioner.
Plaintiff’s Application for Social Security Disability Insurance Benefits
On February 21, 2013, Plaintiff filed an application for Social
Security disability insurance benefits, alleging that she became disabled on or
about May 5, 2012.2 AR at 134-35.3 On or around September 13, 2013, the Social
Security Administration (“SSA”) sent Plaintiff a Notice of Disapproved Claim,
informing Plaintiff that she did not qualify for benefits because she was not
disabled under the SSA’s rules. See id. at 83-86. The Notice of Disapproved
Plaintiff initially asserted that her disability began on October 31, 2011. See ECF
No. 21 at 10. Subsequently, at the hearing before the Administrative Law Judge,
Plaintiff amended her date of disability to May 5, 2012. See id.; see also ECF
No. 17, Administrative Record (“AR”), at 30.
According to the exhibits list included in the record, Exhibit 1D (AR pages 13435) is entitled “Application for Disability Insurance Benefits.” AR at 22. The
Court notes, however, that Exhibit 1D contains a document that is actually entitled,
“Application Summary for Disability Insurance Benefits” (“Application
Summary”). See id. at 134. Although the Application Summary is dated February
22, 2013, and appears to indicate that Plaintiff completed her application that same
date, other documents in the record reflect Plaintiff’s application filing date as
February 21, 2013. See, e.g., id. at 70, 82, 160. Accordingly, this Court will also
treat February 21, 2013 as Plaintiff’s application filing date.
Claim stated that, based on Plaintiff’s records, the SSA concluded that Plaintiff’s
alleged condition “was not disabling on any date through 6/30/13, when [she was]
last insured for disability benefits.” Id. at 83.
On or around October 23, 2013, Plaintiff requested reconsideration of
the SSA’s initial denial of disability benefits. See id. at 89. Plaintiff did not
submit additional evidence in connection with her request for reconsideration. See
id. at 90. The SSA subsequently sent Plaintiff a Notice of Reconsideration, dated
January 30, 2014, denying her request for disability benefits after reconsideration
of her claim. See id. at 90-94. The Notice of Reconsideration stated, “Someone
who did not make the first decision reviewed your case . . . and found that our first
decision was correct.” Id. at 90.
Plaintiff’s Alleged Pain and Treatment
Plaintiff’s disability claim is based upon her alleged back and leg
pain, as well as other related conditions. See id. at 164. According to Plaintiff’s
medical records, Plaintiff began seeking treatment for her pain from David
Arthurs, D.O. in May 2012. See id. at 246-48. Plaintiff thereafter had
appointments with Dr. Arthurs approximately once a month through June 2014.
See id. at 243-81, 308-42. Dr. Arthurs made treatment notes for each of these
appointments with Plaintiff. See id.
Dr. Arthurs’ earliest treatment note for Plaintiff is dated May 23,
2012, and mentions the results of a 2005 MRI scan (“2005 MRI”) indicating that
Plaintiff had “a ruptured L5-S1 disc with right-sided nerve compression.” Id. at
246. The 2005 MRI is part of the record in this case. See id. at 236-42.
Throughout his treatment of Plaintiff, Dr. Arthurs prescribed various pain
medications to Plaintiff. See, e.g., id. at 247, 256, 258, 314.
In February 2013, Plaintiff fell and sustained injuries to her left ankle
and toes. See id. at 255. According to Dr. Arthurs’ notes from a March 7, 2013
follow-up appointment with Plaintiff, Dr. Arthurs began recommending that
Plaintiff attempt physical therapy. See id. at 258. Dr. Arthurs’ notes from May
2012 through June 2013 do not indicate whether Plaintiff followed through with
Plaintiff Requested a Hearing Before the Administrative Law Judge
On or around February 13, 2014, Plaintiff requested a hearing by an
administrative law judge (“ALJ”). See id. at 96. ALJ Tamara Turner-Jones held
the hearing on August 6, 2014. See id. at 25-59 (transcript of hearing). Frank Ury,
Esq. represented Plaintiff at the hearing. See id. at 25.
At the hearing, Plaintiff testified about her daily activities and how
she had difficulty completing household chores. See, e.g., id. at 33-37. Plaintiff
testified that she fell three times “last year,” but initially did not provide specific
dates. See id. at 40. Plaintiff later stated that her first fall occurred at or around the
end of 2012 or beginning of 2013. See id. at 47. Plaintiff also testified that she
tried physical therapy, but stopped going because she “went down after a few visits
from that.” Id. at 40. Again, Plaintiff did not provide specific dates for when she
attempted physical therapy.
In addition, Plaintiff testified about her past work experience.
Plaintiff testified that her most recent employment was in 2011 as a real estate
agent selling timeshares. See id. at 48. Plaintiff also testified that she previously
worked as a bank teller in 2009. See id. at 48-49. In addition, Plaintiff worked full
time as a real estate agent from April 2005 through 2006, and as a bank teller from
2001 to 2005. See id. at 50. According to Plaintiff’s Work History Report,
Plaintiff also worked as a cleaner from February 2008 to January 2009. See id. at
A vocational expert testified after Plaintiff. See id. at 50-58. The
vocational expert testified regarding Plaintiff’s ability to perform past relevant
work. No other witnesses testified at the hearing.
Dr. Arthurs’ Medical Source Statements
Dr. Arthurs submitted two medical source statements (“MSS”) to the
SSA on Plaintiff’s behalf. See id. at 344-52. The first MSS is dated June 30, 2014
(“6/30/14 MSS”). See id. at 344-49. Although unclear, it appears that Plaintiff
submitted the 6/30/14 MSS before the hearing. Plaintiff submitted Dr. Arthurs’
second MSS, dated August 12, 2014 (“8/12/14 MSS”), after the hearing. See id. at
350-52. In the 6/30/14 MSS and the 8/12/14 MSS (collectively, “MSS Forms”),
Dr. Arthurs appears to rely upon Plaintiff’s 2005 MRI results for his conclusions
therein. See id. at 347-48, 351-52.
The ALJ’s Denied Social Security Disability Insurance Benefits
On December 29, 2014, the ALJ denied Plaintiff Social Security
disability insurance benefits, concluding that Plaintiff had not established a
disability as of June 30, 2013. See id. at 12-20. On or around January 23, 2015,
Plaintiff submitted a request to the Appeals Council to review the ALJ’s decision.
See id. at 7; see also id. at 233-35. By letter dated May 10, 2016, the Appeals
Council notified Plaintiff that it had denied her request, finding no reason to review
the ALJ’s decision. See id. at 1-3. The Appeals Council also informed Plaintiff
the Social Security Commissioner (“Commissioner”) had adopted the ALJ’s
decision as the final decision in Plaintiff’s case. See id. at 1. Plaintiff timely
STANDARD OF REVIEW
A district court has jurisdiction pursuant to 42 U.S.C. § 405(g) to
review final decisions of the Commissioner. A reviewing district court will not
disturb a final decision by the Commissioner denying Social Security disability
benefits if the decision is free of legal error and supported by substantial evidence.
See 42 U.S.C. § 405(g); see also Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016)
(reviewing a district court’s decision de novo). Even if a decision is supported by
substantial evidence, it “will still be set aside if the ALJ did not apply proper legal
standards.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014).
In determining the existence of substantial evidence, the reviewing
district court must consider the administrative record as a whole, weighing the
evidence that both supports and detracts from the Commissioner’s factual
conclusions. See id. “Substantial evidence means more than a scintilla but less
than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. “If the evidence can reasonably
support either affirming or reversing, the reviewing court may not substitute its
judgment for that of the Commissioner.” Id. (internal citation and quotation marks
omitted). Rather, courts “leave it to the ALJ to determine credibility, resolve
conflicts in the testimony, and resolve ambiguities in the record.” Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014) (other citation
omitted) (citing 42 U.S.C. § 405(g)).
The requirements for establishing a claim for Social Security
disability benefits is well established in the Ninth Circuit:
To establish a claimant’s eligibility for disability benefits under the
Social Security Act, it must be shown that: (a) a claimant suffers from
a medically determinable physical or mental impairment that can be
expected to result in death or that has lasted or can be expected to last
for a continuous period of not less than twelve months; and (b) the
impairment renders the claimant incapable of performing the work
that the claimant previously performed and incapable of performing
any other substantial gainful employment that exists in the national
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C.
§ 423(d)(2)(A)). A claimant must satisfy both requirements in order to qualify as
“disabled” under the Social Security Act. Id.
The SSA’s Five-Step Process for Determining Disability
The Social Security regulations set forth a five-step sequential process
for determining whether a claimant is disabled. Dominguez v. Colvin, 808 F.3d
403, 405 (9th Cir. 2014); see 20 C.F.R. § 404.1520(a)(4). “If a claimant is found
to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to
consider subsequent steps.” Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir.
2005); see 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof as
to steps one through four, whereas the burden shifts to the Commissioner for step
five. Tackett, 180 F.3d at 1098.
At step one, the ALJ will consider a claimant’s work activity, if any.
20 C.F.R. § 404.1520(a)(4)(i). If the ALJ finds the claimant is engaged in
substantial gainful activity, the ALJ will determine that the claimant is not
disabled, regardless of the claimant’s medical condition, age, education, or work
experience. Id. § 404.1520(b). Substantial gainful activity is work that is defined
as both substantial – i.e., work activity involving significant physical or mental
activities – and gainful – i.e., work activity done for pay or profit. See id.
§ 404.1572. If the ALJ finds that the claimant is not engaged in substantial gainful
activity, the analysis proceeds to step two. Tackett, 180 F.3d at 1098.
Step two requires that the ALJ consider the medical severity of the
claimant’s impairments. 20 C.F.R. § 404.1520(a)(4)(ii). Only if the claimant has
an impairment or combination of impairments that “significantly limits [her]
physical or mental ability to do basic work activities” will the analysis proceed to
step three. Id. § 404.1520(c). If not, the ALJ will find the claimant is not disabled
and the analysis stops. Id. § 404.1520(a)(4)(ii).
The severity of the claimant’s impairments is also considered at step
three. Id. § 404.1520(a)(4)(iii). Here, the ALJ will determine whether the
claimant’s impairments meet or equal the criteria of an impairment specifically
described in the regulations. Id.; see also 20 C.F.R. Part 404, Subpart P, App. 1. If
the impairments meet or equal these criteria, the claimant is deemed disabled and
the analysis ends. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the analysis proceeds to
step four. Id. § 404.1520(e).
Step four first requires that the ALJ determine the claimant’s residual
functional capacity. Id. Residual functional capacity (“RFC”) is defined as the
most the claimant can still do in a work setting despite her physical and mental
limitations. See id. § 404.1545(a)(1). In assessing a claimant’s RFC, the ALJ will
consider all of the relevant evidence in the claimant’s case record regarding both
severe and non-severe impairments. Id. § 404.1545(a)(2). This assessment is then
used to determine whether the claimant can still perform her past relevant work.
Id. § 1520(e). Past relevant work is defined as “work that [the claimant has] done
within the past 15 years, that was substantial gainful activity, and that lasted long
enough for [the claimant] to learn to do it.” Id. § 404.1560(b)(1). The ALJ will
find that the claimant is not disabled if she can still perform her past relevant work,
at which point the analysis will end. Otherwise, the ALJ moves on to step five.
In the fifth and final step, the ALJ will once again consider the
claimant’s RFC as well as her age, education, and work experience, to determine
whether the claimant can perform other work. Id. § 404.1520(a)(4)(v). Here, the
Commissioner is responsible for providing “evidence that demonstrates that other
work exists in significant numbers in the national economy that [the claimant] can
do.” Id. § 404.1560(c)(2). If the claimant is unable to perform other work, she is
deemed disabled; if she can make an adjustment to other available work, she is
considered not disabled. See id. § 404.1520(g)(1).
The ALJ’s Decision
At step one, where the ALJ considers the claimant’s work activity, the
ALJ found that Plaintiff “did not engage in substantial gainful activity during the
period from her alleged onset date of May 5, 2012 through her date of last insured
of June 30, 2013.” AR at 14. At step two, where the ALJ considers the medical
severity of the claimant’s impairments, the ALJ found that Plaintiff suffered severe
impairments from “degenerative disc disease of the lumbar spine and obesity.” Id.
At step three, where the ALJ considers whether the claimant’s impairments meet or
equal the criteria of an impairment specifically described in the regulations, the
ALJ found that, as of the date of last insured, Plaintiff did not have an impairment
that “met or medically equaled the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1.” Id. at 15. Plaintiff agrees with the ALJ’s
findings with respect to steps one through three. See ECF No. 21 at 9.
At step four, where the ALJ determines the claimant’s RFC, the ALJ
found that, as of the date last insured, Plaintiff had the RFC “to perform light work
as defined in 20 CFR 404.1567(b)” with certain exceptions:
[S]he is able to lift/carry ten pounds frequently and 20 pounds
occasionally. Further, she is able to sit, stand and/or walk for six
hours out of an eight-hour workday with customary breaks provided
she is able to alternative positions between sitting and standing at one
hour intervals for one to five minutes at the workstation. She is
capable of climbing ramps and stairs, kneeling, stooping, crawling and
crouching on an occasional basis while being restricted from climbing
ladders, ropes or scaffolds. Additionally, she is able to perform
overhead reaching above shoulder level with both upper extremities
occasionally and has no limitations with her fine or gross
AR at 15.
Based on Plaintiff’s RFC and the vocational expert’s testimony at the
hearing, the ALJ also determined that Plaintiff was capable of performing her past
relevant work as a real estate agent and bank teller. See id. at 19. The ALJ thus
concluded that Plaintiff was not disabled at any time from her alleged onset date,
May 5, 2012, through her date of last insured, June 30, 2013. See id. at 20.
Accordingly, the ALJ ended her analysis and did not proceed to step five.
Whether the ALJ erred in assigning “little weight” to Dr. Arthurs’
medical opinions in the MSS Forms
In her Opening Brief, Plaintiff argues that the ALJ improperly
rejected Dr. Arthurs’ opinions in the MSS Forms because they were: (i) in
checklist format; (ii) inconsistent with each other; and (iii) based only on
Plaintiff’s subjective complaints. See ECF No. 21 at 16-19. Plaintiff thus appears
to argue that the ALJ improperly weighed Dr. Arthurs’ opinions in the MSS
Forms. For the reasons set forth below, the Court affirms the ALJ’s findings on
Standards for Weighing Medical Opinion Evidence
In assessing whether or not a claimant is disabled, the ALJ must
“develop the record and interpret the medical evidence,” considering the
“combined effect” of all of claimant’s impairments, regardless of whether any one
impairment, considered alone, would be of sufficient severity.” Howard v.
Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citing 20 C.F.R. § 416.923).
Ultimately, “it is the responsibility of the ALJ, not the claimant’s physician, to
determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049
(9th Cir. 2001) (citing 20 C.F.R. § 404.1545).
“Although a treating physician’s opinion is generally afforded the
greatest weight in disability cases, it is not binding on an ALJ with respect to the
existence of an impairment or the ultimate determination of disability.” Ukolov,
420 F.3d at 1004 (quotation marks and citation omitted). A treating physician’s
opinion should be given controlling weight when it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in [the] case record.” Ghanim v.
Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (alteration in original). “To reject an
uncontradicted opinion of a treating physician, the ALJ must provide clear and
convincing reasons that are supported by substantial evidence.” Id. at 1160-61
(internal quotation marks and citation omitted).
“Even if a treating physician’s opinion is contradicted, the ALJ may
not simply disregard it.” Id. at 1161. Rather, in determining how much weight to
afford the treating physician’s medical opinion, the ALJ must consider factors such
as treatment relationship, the length of the treatment relationship and the frequency
of examination, the nature and extent of the treatment relationship, the
supportability of the opinion with medical evidence, and consistency with the
record as a whole. Id.; see also 20 C.F.R. § 404.1527(c)(2)-(6). An ALJ may only
reject a contradicted treating physician’s opinion by providing “specific and
legitimate reasons that are supported by substantial evidence.” Id.
The ALJ’s reasons for discounting Dr. Arthurs’ opinions
Although the ALJ did not reject the opinions in Dr. Arthurs’ MSS
Forms in their entirety, the ALJ assigned them “little weight.” See AR at 18. The
ALJ explained that her reasons for doing so were because the opinions were
“vague, inconsistent and inconsistent with treatment notes.” See id. For the
reasons set forth below, the Court concludes that the ALJ’s reasons were “specific
and legitimate,” and are supported by substantial evidence in the record.
Dr. Arthurs’ opinions were vague
The ALJ noted that the MSS Forms are check-box forms and cited
caselaw for the proposition that such “‘checklist opinions are weak evidence at
best.’” Id. (other citations omitted) (citing Negrete v. Barnhart, 186 Fed. Appx.
734 (9th Cir. 2006); Mason v. Shall, 994 F.2d 1958, 1065 (3d Cir. 1993)). The
Ninth Circuit Court of Appeals has held that “the ALJ ‘may permissibly
reject[ ] . . . check-off reports that [do] not contain any explanation of the bases of
their conclusions.’” Molina v. Astrue, 674 F.3d 1104, 1111-12 (9th Cir. 2012)
(alterations in Molina) (quoting Crane v. Shalala, 76 F.3d 251, 253 (9th Cir.
1996)) (citing Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (“[T]he
regulations give more weight to opinions that are explained than to those that are
not.”)). “Further, an ALJ may discredit treating physicians’ opinions that are
conclusory, brief, and unsupported by the record as a whole . . . or by objective
medical findings . . . .” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,
1195 (9th Cir. 2009) (internal citations omitted). Here, although Dr. Arthurs did
provide handwritten notes in addition to his check-box answers, such notes were
conclusory and brief. See AR at 347-49. Furthermore, such notes conflicted with
Dr. Arthurs’ own treatment notes and are, therefore, not supported by the record as
a whole. Thus, the ALJ properly discounted Dr. Arthurs’ opinions.
Plaintiff argues that “[w]here a check-box form is used by a physician
who has had significant experience with the Plaintiff and is supported by numerous
records it is entitled to weight that an otherwise unsupported and unexplained
check-box form would not merit.” ECF No. 21 at 16. In support of this argument,
Plaintiff relies upon Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014). Garrison,
however, is distinguishable from this case because, as explained below,
Dr. Arthurs’ own treatment notes do not support his opinions in the MSS Forms.
Thus, the Court concludes that the ALJ did not err on this issue.
Dr. Arthurs’ opinions were contradictory
The ALJ discounted Dr. Arthurs’ opinions based on her finding that
the MSS Forms contained contradictory opinions. See AR at 18. In her Opening
Brief, Plaintiff argues that Dr. Arthurs’ opinions are not contradictory because
“each report covered a different time period.” ECF No. 21 at 17. The Court finds
that Plaintiff’s argument unclear and unsupported by the MSS Forms.4 The only
reference to a specific time period is in the 6/30/14 MSS, which asked, “Has
Carla’s condition existed and persisted with the restrictions as outlined in this
Medical Source Statement at least since you started treating Carla in May 2012?”
AR at 349. In response, Dr. Arthurs checked, “Yes.” Id. The 8/12/14 MSS
Although Plaintiff’s argument contains citations to the record, the Court notes
that the cited pages do not exist. See ECF No. 21 at 17 (citing to pages 424 and
427 of the record, which ends at page 352).
contained no such time period restriction. See id. at 351-52. Thus, the Court
disagrees with Plaintiff’s argument that the MSS Forms were not contradictory
because they covered different time periods.
As set forth above, an ALJ may only reject a contradicted treating
physician’s opinion by providing “specific and legitimate reasons that are
supported by substantial evidence.” Ghanim, 763 F.3d at 1161. In deciding to
discount Dr. Arthurs’ opinions, the ALJ specifically cited the inconsistency
between Dr. Arthurs’ initial opinion in the 6/30/14 MSS that Plaintiff “could not
lift/carry any weight [and] his opinion two months later [in the 8/12/14 MSS]
reporting that she was able to carry up to 20 pounds occasionally.” Id. At the
same time, Dr. Arthurs also stated in both MSS Forms that Plaintiff “could only
rarely bend while being able to sit for only 15 minutes at a time and stand/walk for
five minutes at one time.” Id. Moreover, Dr. Arthurs opined in the 6/30/14 MSS
that Plaintiff could continuously sit for a maximum of one hour before having to
alternate postures, but later opined in the 8/12/14 MSS that Plaintiff would only be
able to sit for less than 15 minutes. Compare id. at 344 (6/40/14 MSS), with id. at
351 (8/12/14 MSS). Based on the foregoing, the Court concludes that the record
contains substantial evidence to support the ALJ’s decision to discount
Dr. Arthurs’ contradictory opinions.
Dr. Arthurs’ opinions conflicted with his treatment notes
The ALJ also discounted Dr. Arthurs’ opinions because they
conflicted with his treatment notes. See id. at 18. “A conflict between treatment
notes and a treating provider’s opinions may constitute an adequate reason to
discredit the opinions of a treating physician or another treating provider.”
Ghanim, 763 F.3d at 1161 (citing Molina, 674 F.3d at 1111-12) (recognizing that a
conflict with treatment notes is a germane reason to reject a treating physician
assistant’s opinions); Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 69293 (9th Cir. 2009) (holding that a conflict with treatment notes is a specific and
legitimate reason to reject a treating physician’s opinion)).
The ALJ found that Plaintiff “consistently presented with normal
physical findings including normal gait, normal sensation, no tenderness or muscle
spasm and ability to bend forward and touch her fingers to her toes with straight
needs as well as squat and easily arise to standing until June 2014.” AR at 19.
Upon review of the record, the Court finds that Dr. Arthurs’ treatment notes
support the ALJ’s finding. See id. at 250, 262, 265, 268, 271, 274, 277, 280, 253,
258, 260, 309, 313-14, 315-16 (Dr. Arthurs’ treatment notes from May 2012
through June 2013 consistent with the ALJ’s finding). Significantly, Dr. Arthurs’
treatment notes from Plaintiff’s June 21, 2013 appointment, nine days before her
date of last insured, stated: (i) “Patient denies arthritis symptoms, osteoporosis,
back pain;” and (ii) “Able to forward bend and touch fingers to toes with straight
knees. Able to squat and easily arise to standing.” Id. at 315, 316. These
treatment notes conflict with the 6/30/14 MSS, in which Dr. Arthurs opined that
Plaintiff has reduced range of motion and that “lumbar spine forward bending
causes pain with minimal flexion.” Id. at 347. Dr. Arthurs’ treatment notes also
conflict with his opinion that Plaintiff suffered from sensory loss, absent reflex,
positive straight leg raise, and was unable to squat. See id.
Furthermore, Dr. Arthurs’ treatment notes conflict with his opinions
in the 8/12/14 MSS. For example, when asked how often Plaintiff could bend
forward from a standing and sitting position, Dr. Arthur selected “Rarely/None [or]
No sustained/8 hours.” See id. at 351. Dr. Arthurs also opined that Plaintiff
suffered severe pain “which [was] exacerbated by sitting, standing, bending
lifting.” See id. at 352. Given the conflicts between Dr. Arthurs’ treatment notes
and his opinions in the MSS Forms, the Court concludes that the ALJ properly
discounted Dr. Arthurs’ opinions.
Whether the ALJ’s decision to discount Dr. Arthurs’
opinions was because his opinions were based solely on
Plaintiff’s subjective complaints
Plaintiff argues that the ALJ erred in finding that Dr. Arthurs’
opinions appeared to be based only on Plaintiff’s subjective complaints and in
rejecting such opinions as a result. See ECF No. 21 at 18. Although unclear,
Plaintiff appears to refer to the ALJ’s statement, “Therefore, the undersigned gives
these opinions little weight as they are vague and inconsistent giving the
impression that they are based upon the claimant’s subjective complaints and not
on the clinical findings.” AR at 19. The Court disagrees that the ALJ made a
finding that Dr. Arthurs’ opinions were based solely on Plaintiff’s subjective
complaints, or that such complaints were a reason the ALJ discounted Dr. Arthurs’
opinions. At an earlier part in her decision, the ALJ had already stated and
explained her reasons for discounting Dr. Arthurs’ opinions. See id. at 18-19.
Thus, the Court finds that the ALJ did not commit error as to this issue.
Based upon the foregoing, the Court concludes that the ALJ did not
err in assigning “little weight” to Dr. Arthurs’ opinions in the MSS Forms.
Whether the ALJ erred in finding that there are no current studies
showing that Plaintiff’s condition had persisted or grown worse
The ALJ’s decision stated, “[w]hile [Plaintiff’s] 2005 MRI of her
lumbar spine showed a posterior disc herniation at the LS-S1[sic] with possible
nerve root compromise there are no current studies showing that this condition has
persisted or has grown worse.” Id. at 17. Plaintiff’s Opening Brief asserts that, by
making this statement, the ALJ improperly substituted her medical opinion for
those of Dr. Arthurs and the non-examining physicians. See ECF No. 21 at 19. In
her Answering Brief, Defendant argues that Plaintiff’s assertion overlooks the fact
that the 2005 MRI was done approximately seven years prior to the alleged
disability onset date. See ECF No. 25 at 17. Defendant further points out that
Plaintiff’s assertion conflicts with her hearing testimony that she worked a fulltime job until October 2011. See id. (citing AR at 32, 176, 340-41). In the Reply,
Plaintiff contends that Defendant’s arguments constitute a post hoc attempt to
rationalize the ALJ’s decision. See ECF No. 26 at 2.
“Long-standing principles of administrative law require [the court] to
review the ALJ’s decision based on the reasoning and factual findings offered by
the ALJ – not post hoc rationalizations that attempt to intuit what the adjudicator
might have been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
1225 (9th Cir. 2009). Here, when the ALJ discussed the 2005 MRI and the lack of
“current studies,” she did not emphasize that seven years had passed until
Plaintiff’s alleged onset date, nor did she note Plaintiff’s subsequent ability to
work. See AR at 17. Rather, the ALJ made this statement in the context of
determining the lack of evidence that Plaintiff’s back injury had persisted, grown
worse, or was not already well-managed with medication. See id. Thus, the Court
agrees with Plaintiff that Defendant’s arguments are post hoc rationalizations that
are not supported by the ALJ’s reasoning in her decision.
Notwithstanding Defendant’s unsupported post hoc rationalizations,
the Court disagrees with Plaintiff’s assertion that the ALJ improperly substituted
her medical opinions for those of the other physicians in this case. As noted above,
the ALJ had a duty to “interpret the medical evidence” in determining Plaintiff’s
RFC. Howard, 341 F.3d at 1012. “‘Even when the evidence is susceptible to more
than one rational interpretation, [courts] must uphold the ALJ’s findings if they are
supported by inferences reasonably drawn from the record.’” Ghanim, 763 F.3d at
1159-60 (quoting Molina, 674 F.3d at 1111). Here, the Court finds that the ALJ
reasonably inferred that Dr. Arthurs’ treatment notes and apparent decision not to
order a more “current study” indicated that Plaintiff’s condition had not worsened
since the 2005 MRI and that her pain was well managed with medication. Thus,
the Court concludes that the ALJ did not err on this issue.
Whether the ALJ erred in failing to consider evidence regarding
Plaintiff argues that the ALJ improperly discounted Plaintiff’s
subjective complaints based on the ALJ’s findings that Plaintiff did not appear to
follow through with Dr. Arthurs’ recommendations for physical therapy. See ECF
No. 21 at 20. The Court construes Plaintiff’s argument as one that the ALJ failed
to discuss certain evidence regarding Dr. Arthurs’ recommendation of, and
Plaintiff’s participation in, physical therapy. Specifically, Plaintiff argues that the
ALJ failed to consider: (i) Dr. Arthurs’ referral to Dr. Ray, a pain management
specialist; (ii) Plaintiff’s hearing testimony that she attended physical therapy; and
(iii) Dr. Arthurs’ mention of “Plaintiff’s physical therapy history on two
occasions.” See id. at 20.
The Ninth Circuit Court of Appeals has held that “[t]he ALJ is not
required to discuss evidence that is neither significant nor probative.” Howard,
341 F.3d at 1012 (citation omitted). Although Plaintiff’s Opening Brief cites to the
record, the cited pages either do not exist in the record or do not contain
information supporting her arguments. It appears to the Court, based on its own
review of the record, that Plaintiff intended to cite to pages in Dr. Arthurs’
treatment notes dated December 16, 2013 (AR at 331), June 30, 2014 (AR at 342),
as well as his 6/30/14 MSS (AR at 349).
The parties do not dispute that Plaintiff was required to establish a
disability on or before her date of last insured, June 30, 2013, to be entitled to
disability insurance benefits. See ECF No. 21 at 13; ECF No. 25 at 16. Thus, the
crucial period for evidence of Plaintiff’s alleged disability is between May 5, 2012
and June 30, 2013. The evidence regarding physical therapy at issue, however,
concerns Plaintiff’s treatment after the date of last insured. Thus, the Court
concludes that such evidence was neither significant nor probative, and the ALJ
was not required to discuss it. See Howard, 341 F.3d at 1012; see also Cline v.
Astrue, No. ED CV 08-463-PLA, 2009 WL 2163507, at *4 (E.D. Cal. July 16,
2009) (holding that ALJ was not required to discuss a treating physician’s opinions
in a report prepared three years after the plaintiff’s date of last insured); c.f. Jones
v. Berryhill, No. 14-35314, 2017 WL 1130243, at *1 (9th Cir. Mar. 27, 2017)
(citing Howard) (holding that the ALJ did not err in failing to discuss medical
records that “significantly predated” the plaintiff’s amended onset date).
For the reasons set forth above, the Court concludes that there is
substantial evidence in the record to support the ALJ’s finding that Plaintiff did not
have a disability on or before June 30, 2013, her date of last insured. Given the
standard under which this Court must review the ALJ’s findings, the Court
AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED.
DATED: Honolulu, Hawaiʻi, June 30, 2017.
/S/ Kenneth J. Mansfield
Kenneth J. Mansfield
United States Magistrate Judge
CV 16-00363 KJM; Carla Jean Carvalho v. Nancy A. Berryhill (Order Affirming
Decision of Social Security Commissioner)
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